Nichol v. West Valley City

Nichol v. West Valley City

IN THE UTAH COURT OF APPEALS

----ooOoo----

Susan L. Nichol,
Plaintiff and Appellant,

v.

West Valley City Corporation, Salt Lake City Corporation, Salt Lake County, Utah Department of Transportation, and the State of Utah,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020976-CA
 

F I L E D
(May 30, 2003)
 

2003 UT App 178

 

-----

Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Richard R. Burke, Salt Lake City, for Appellant

Mark L. Shurtleff, Brent A. Burnett, and Joni J. Jones, Salt Lake City, for Appellees Utah Department of Transportation and State of Utah

Scott W. Christensen, West Valley City, for Appellee West Valley City

J. Wesley Robinson, Salt Lake City, for Appellee Salt Lake City

-----

Before Judges Jackson, Billings, and Greenwood.

PER CURIAM:

This appeal is before the court on motions for summary affirmance filed by Appellees Utah Department of Transportation (UDOT), the State of Utah, Salt Lake City, and West Valley City.

Nichol delivered her amended notice of claim on July 20, 2000directed to each Appellee. Salt Lake City and UDOT/State of Utah denied the claim in writing. West Valley City allowed the statutory ninety-day period to expire without taking any action. Nichol filed a complaint on January 7, 2002, one year and three months after the claim was denied or deemed denied.

Utah Code Ann. § 63-30-14 (1997) states:

Within ninety days of the filing of a claim the governmental entity or its insurance carrier shall act thereon and notify the claimant in writing of its approval or denial. A claim shall be deemed to have been denied if at the end of the ninety-day period the governmental entity or its insurance carrier has failed to approve or deny the claim.

Utah Code Ann. § 63-30-15(2) (1997) provides that "[t]he claimant shall begin the action within one year after denial of the claim or within one year after the denial period specified in this chapter has expired."

Harward v. Utah County, 2000 UT App 222, 6 P.3d 1140, is dispositive of this case. Harward did not receive a written decision within ninety days of the delivery of his notice of claim; therefore, the claim was "deemed to have been denied . . . at the end of the ninety-day period." Id. at ¶4. The claims were deemed denied on September 4, 1996, ninety days after their mailing. See id. at ¶8. Accordingly, we held the complaint filed on September 5, 1997, was properly dismissed because it was late by one day and therefore was barred as untimely. See id. In this case, Nichol delivered her notice of claim on July 20, 2000, and it was deemed denied on October 18, 2000. Her complaint was filed approximately fifteen months later and was untimely.

Nichol incorrectly contends that Hall v. State, 2001 UT 34, 24 P.3d 958, held that a plaintiff must wait for a written denial before filing an action in district court. Hall filed his notice of claim on the same day that he filed his complaint. The Utah Supreme Court concluded that "potential plaintiffs must provide a formal 'notice of claim' to the appropriate governmental official before bringing their action." Id. at ¶22. "Once a plaintiff's notice of claim is filed, the [Governmental Immunity] Act continues to bar its initiation in court until the state either denies the claim in writing or fails to act for ninety days." Id. (emphasis added). "Only after the state has had the opportunity to consider the claim for ninety days is suit against the government allowed." Id. Accordingly, the supreme court held the action was properly dismissed because simultaneous filing of a notice of claim and a complaint did not comply with the notice requirements of the act. See id. at ¶26. The time for filing an action commences with either written denial of the claim or the expiration of ninety days after delivery of the notice of claim. See Utah Code Ann. § 63-30-14; Hall, 2001 UT 34 at ¶22.

Nichol concedes that UDOT and Salt Lake City denied her claim in writing. However, she argues that her "substantial compliance" with the act by filing her action within one year, plus three months, of the denial did not prejudice either entity, and her action should not have been dismissed. This contention is without merit. As the Utah Supreme Court stated in Hall, "[w]e have consistently and uniformly held that suit may not be brought against the state or its subdivisions unless the requirements of the Governmental Immunity Act are strictly followed." Id. at ¶23. "[W]here the government grants statutory rights of action against itself, any conditions placed on those rights must be followed precisely." Id.

We affirm the dismissal of the complaint against UDOT, the State of Utah, West Valley City, and Salt Lake City. The appeal shall continue only insofar as it challenges the summary judgment entered in favor of Salt Lake County, which has not sought summary disposition.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge